James Shorunkeh Paul v Obadiah J Samuels v Joycelyn H Thorpe [1922] SLSC 3 (14 February 1922)

77 JAMES SHORUNKEll PAUL - Appellant. 'IJ. Ol3AD1.A.H J. SA)1UELS and .JOCELYX II. 'l'ITORPE - Resz1ondents. rlction for damages for ejectment from a pew-Appropriation ojzJeii'S by rh~trclt11'arrlMis unde1· the diretf1.on of Parochial Commi/1('('-Section Vi of tlte C'onslihtlion of tl1e Sierra Leone .Vati1•e Pastorate Chu1·ch. The facls of this case are sufficiently set out in the judgments. Case rescrYed :md stated by Purcell, C.J., in the Supreme Court of the Colony of Sicrr·n, TJconc for the opinion of Full CourL of Appeal. C.\P.E P.T..1TED. The Plaintiff's claim in this action reads as follows: -The Plaintiff's (·lnim is for d:mwges for assault, £120, and for an injunction to restrain the Dofcndnnts from repetition of the said injury or molesting or obstl'uding him in the free use and enjoy ment of his l)ew at the Parish Church of Raint Patrick, in the >illage of Kissy. 'l'he fads of this case nw~· be thus briefly summarised. In consequence of a refusal by the Defendant ('l'horpe) to pay his pew rent for n pew (No. D) in Kissy Parisl1 Church some time during 1918, the pew in qu<'st ion was allotted to the Plaintiff (Paul). SuhRequently this pew (X o. 9) was re-allotted to Thorpe, as from ,January 1st, 1921, and notice was served on the Plaintiff to that effect. X otwithstanding such notice Plaintiff occupied this pew (~o. 9) on Sunlla~·, .January 9th, 1921, and remained in it during the service, although invited to move out by both Defendants, and it is alleged that on this occasion they both attempted unsuccessfully to pull him out of this pew, which constituted i.11e assault complained of. The question at issue here is in reality a >ery simple one, and it is this. What construction is to be placed on the following words in Article 13 o£ the Constitution of the Native Pastorate Church? " They " (meaning the church wardens) " shall, under the directions of the Parochial Com- 6 14th FebrUary, 1922 PAUL "· SAMUELS & TnORl'll. 78 " ?nittee, app1·opriate pews and collect the pew rents." It is, as I tllink, to gi>e the churchwardens alHl r>:nochial Committee an unfettered discretion, and this interpretation of the words of Article 13 is strengthened by the analogy of the rights of church wardens in England . It is clear that in Eugland church wardens may, in their discretion, direct persons where to sit, either at a particular ser>ice, or for an indefinite period (Hals bury, \ol. XI., p. 470, Conen's ease, 1612, 12 ('o. Rep . 105; Pettman v . Bridger, 1811; 1 Phillimore 316, 32!3), and that churchwardens cannot make an irrevoc·al)le assignment of a pew, or divest themsehes of the right to re-arrange sittings when desirable (Halsbury,. Yol. XI., pp. 470, 471; Cox·'\'en's case, PelLman 't:. Bridger). But it has bE-en argued in this case that :\ custom existed to allot a pew year n fle1· year in perpetuity to individuals and their next-of-kin. rrhe e\·idenrc did not support the contention that a binding c~1stom existed, for the Plaintiff's witnesses could go no further than to say that, except in one case, they had never known a person who paid his pew rent regularly to be depri'\'ed o£ his pew, :nHl I his evidence is consistent with the Defendants' contention that there was no binding custom, but only a practice hindi11g upon no one. Further, such a custom, if existing, is not binding, because it has not existed from time immemorial. The Church of England was established in Sierra I~eone, and the Colony itself founde d, only within comparati>ely recent yl:'ars. There can be no hinding custom unless it has existed from time immemorial. Again, such a custom as alleged hy the l)laintiff would be unreasonable, for it would prevent the Churchwardens from exercising their functions at all, once a pew has been allotted to a person, the Plaintiff's witnesses going so far as to say that whatever a man did, sci long as he paid his pew rent, he co·uld insist on having his pew. The case of ne:vnolds "'· Monkton, 1841, 2 Moody and R. 384, is clcar authority that a church warden may use sufficient force to remove a parishioner who intrudes on a pew assigned to another. T11 this rase, whatever degree o£ -force was used it was not sufficient to remove the Plaintiff from the pe,v, for he r<>mninecl in 1t througl1out the Rervice on that Sunday morning, .Tanmny !)th, 1!)21. The evidence as to the force used hy the nefendants given hy the different witnesses for the Plnintiff e'\'en differed very greatly, and was not consistent. The witnesses for tl1e defence denied that there was anything more than a gentle to11ch. But in any case all agreed that the force \1Sec1 was not sufficient to remo>e the Plaintiff from the pew, and in my opinion the 79 Defendant (Samuels), who was a churchwarden, was within his strict legal rights in the course he adopted, and from the evidence it is dear that if 'l'horpe did touch the Plaintiff, he acted in a merely subsidiary manner, and under Samuels' direction. Although personally I entertain no doubt whatever on this particular matter, I ha•e heen much pl'essed to state a case under the provisions of section 12 of Ordinance No. 14 of 1912,1 and I have decided to take that course, inasmuch as the Plaintiff is a poor man, and an appeal in the ordinary course is beyond his pocket. I therefore reserved the following question for the decision of the Court of Appeal. " Is the appro " pt·iation of pews by the churchwardens under the direction of " the Parochial Committee, as set forth in Article 13 of the Con " slil ution of the Sierra Leone Church, an absolute appropriation " subject only to the due payment of the pew rent? " I£ the Court of Appeal answet' this question in the affirmative, then this case must he remitted to the Court below to be dealt with accordingly, but if otherwise (as I lun·e held in this judgment) then the claim in this action will be dismissed, with costs. (Sgd.) G. K. '1'. PURCELL, Chief J1tstice. Graham for the Appellant cites :- l)hillimore's Eccleciastical Law, Chapter III., section 2, p. 1779. Constitution of the Sierra J.eone Church, Article X. Ueynolds v . )!onkton, 2 lL and Rob., p. 384. ·worth v. Tel'l'ington, 13 U. and W., p.

795. Wright and Betts for the Respondents cite:- IIulsbury's Laws of England, Vol. II., p.

470. Cla;erley -v. ('ln•erle~· (1909), Probate Divi sion, p.

195. Fuller v. JJeig-l1, Vol. 162, Bng. lteports, p.

348. IIalsbury's T~aws of England, Vol. X., p.

286. Graha1n in reply cites :- 2~ and 24 Victoria, Cap.

22. PURCELl;, C.J. The question at issue here has been very fully set out in the special case, and therefore need not at any length be recapitu lated. t Now Cap. 205, sec. !13, Vol. IT, p. 1437. 6A PAUL v. SntUELS & TaoRPE. I'•m. tl. S.uurELS & 'J:HORPB. POll<'l!LL, C.J. 80 The question on which this Court is invileu to give its decision is " whether the apz>ropriation of pew.~ by the church " wardens 1mder the direction of tl1e Parochial Committee, as " se~ forth in Article 13 of the Constitution of the Sierra Leone ''Church, is an absolute apznoz>riatirm, .~ulJject rml.IJ to due pay- ,, ment of pew rent?" That is to say, when once the churchwardens have allocated a seat to a person, and such person duly puye; his pew rent, ean the rhurchwardens, under the diredion of 01e Parochial Committee, gi>e such person notice that they have appropriated the seat in question to another person? That is what has happened in the present case. Thorpe originally had the pew allocated to him-but in consequence of non-payment of tl1e pew re11t, the pew was allo cn.ted to Paul, who made no default in payJI\en t of pew I'ent. Subsequently, in spite of this bet, the ch·urchwardens, under tl1e directions of the Parochial Committee, re-allocated the seat to Thorpe, and gave Paul notice to that c:fl'ect-but Paul per sisted in still occupying the pew, and it wac; an ineffectual attempt to eject him from it that l1a~ lr(\ io the pre::;ent litigation. In my opm10n, and for the reasons very fully stn.ted in the special case, 1 think the question should he anc;wered in the negati>e-that is to say, such appropriation is not an absohtte one, and that-as a matter of law-the Ch1trCh wnrdens ha>e the power to re-appropriate the pews in the Church whenever they may consider it necessary to do so. SA WREY COOKSON, J. I agree, and only wish to add that T have no doubt at all that the Plaintiff's claim for damag-es here sho11ld be dismissed upon the only construction possible to pui upon Article 13 of the Constitution o£ the N ativ~ Pastorate Church. The learned Chief Justice has held that the words of that article give the wn.rdens an unfettered discretion in the matter o{ allotting pews, and I should t1gree that by themselves tl1osc words could not reasonably bear any other construd ion; hut when it is also seen that, from the earlier part of that article, the <'hmchwardens are elected once in each year, it becomes more than ever impossible to construe those words in any other sense. To do so would also be to run counter to what bas long ago been decided, viz., that " churchwardens cannot make an irrevorable assignment,~· " or divest themselves or their succec;sors of the power of making 81 " a fresh arrangement whenever cireumstances render it desir " .able." (See llabbury's Laws of England, Yol. Il., pp. 470- 471.) In support of that pronouncement of the well-estab lished law ou the subject, amoug others the case o£ .\~her v. CalCI·nH (1887, 18 q.B.D., p. G07) is cited as authority for the proposition that churchwardens are competent to direct where persons shall sit, even in a Clnm:h where certain of the seats or pews are free . A fortiori, therefore, where it is specifically made part of the anm.1ally elected wardens' prerogati>e to allot seats or pews in return for a rent therefor, it is manifest that any intruder or trespasser in a pew or seat so a.llotteu may, by the use of a not unreasonable amount of force for the purpose, be remo>ed therefrom. As I h:.we already said, therefore, the question must be answered in the negative and the claim dis missed with costs. McDO?fNE LL, Aeting J. I agree. PAUL v. SAliiUELS & TliO.RPZ:. s .twnt:\· .. COOK>OS, J.